AAJ Conference Track Focuses on Professional Negligence

The American Association for Justice (AAJ) Annual Convention that recently took place July 7-10, 2018 in Denver, Colorado, was an eye-opening experience. I was asked to speak on Avoiding Ethical Missteps in Promoting Your Firm, as part of a Professional Negligence Section CLE Program track. Besides a multitude of CLE programs on themes that ranged from trampoline injuries to the hugely popular (standing room only) sexual assault litigation group programs in what is now the #MeToo era, I found that a walk through the Expo Hall offered dozens of vendors providing products and services geared toward marketing, business development, and simply getting leads…and converting them. Some were quite entrepreneurial and unique; some made me a bit queasy (regardless of whether I was wearing my marketing attorney hat or ethics attorney hat, or both). There are seemingly hundreds of companies with the “best” web development, SEO and PPC strategies. And, yet, there were products that got me to stop, watch a demo, and grab a business card.

The track in which I participated as a faculty member, Professional Negligence, offered an excellent day of subjects and attorney speakers, including: Finding Damages Through Every Witness Defense and Plaintiff, J. Jude Basile; my Avoiding Ethical Missteps in Promoting Your Firm session; Cross-Examination of Defendants in Medical Negligence Cases, Paul A. Casi; Captivating the Jury, William P. Lightfoot; Leveling the Playing Field: A Jury Selection System that Roots Out Bias, Keith R. Mitnik; Practical Application of Electronic Medical Records for Trial, James Puga and Don Hanson; The Affordable Care Act: Are Future Damages a Thing of the Past?, Emily G. Thomas; Topics in Calculating Economic Damages for Personal Injury and Wrongful Death, Gene A. Trevino; Direct Examination or “The Heart of the Trial”: Direct Examination From A to Z, Thomas J. Vesper; and Avoiding Legal Malpractice, David L. Wikstrom.

In Avoiding Ethical Missteps in Promoting Your Firm, I noted that in the context of the day-long program theme—a trial from beginning to end—there are multiple places that the segment could go. You could start at the beginning, by showing ways that your law firm may have obtained the client in the first place; or you could put it post-verdict and discuss ways that your outcome could lead to the next and future cases and clients.

The tricky part of all this for many trial lawyers is the myriad of state bar rules and regulations that dictate and monitor what you can and cannot do in the ever-growing scope of marketing, business development, advertising, and solicitation. Make no mistake, the rules have changed (and continue to change rather rapidly). And these “rules” are not limited to the Rules of Professional Conduct, but the “rules of the game” that are spurred on by technological advances, which in turn create blurred jurisdictional lines and a change in the manner that prospective clients go about selecting counsel.

I hit on content marketing, competition from branded networks, the ever-growing, never-boring ratings, rankings and reviews space, proposed law marketing ethics rule revisions, and simply “can I promote my outcome?” and how? This included a discussion of blog posts, social media, review sites and really anything “content” (that may or may not be deemed advertising). As is often the case with my CLE presentations, a significant decision from the California Supreme Court the prior week, regarding Yelp and a lawyer-client review spat set the stage for everything else.

If there was anything I took away from the AAJ’s annual convention, it was that there is no shortage of new case and trial opportunities; and no shortage of aggressive and entrepreneurial folks to take them to market. Of course, this means it will also keep my defense firm clients busy as well—as they seek to represent corporate clients on the other side of the table. That marketing is different, but it is serious marketing nonetheless.

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